Elections and appointments in 2019: the EU institutional debate

Europe in 2019 will not just be the year of Brexit. It will also witness the election of a new European Parliament (“EP”), the choice of a new president of the European Commission and of a new Commission, as well as the appointment of a new president of the European Council and of the European Central Bank. All this under the spell of the next “Multiannual Financial Framework,” a five-year budget plan for the years 2021-27, which will be under discussion throughout the year.

On February 13, the European Commission presented a communication on how to deal with the budget challenges, and another one on the institutional “options” for next year (see here). The heads of state and government will have a first informal discussion on all this on February 23.

They will not yet discuss names – it is too soon – but will touch on how the leaders will be chosen, and the composition of the Commission and Parliament. Indeed, four years ago, when Juncker and his Commission were appointed, some of the institutional innovations of the Lisbon treaty were implemented for the first time, and it was agreed that their interpretation required further debate. But this debate did not take place until now: the challenges of the ensuing years – with the migration crisis, the rise of populism in many members states and the unexpected result of the Brexit referendum – prevented EU leaders from looking too much to the future.

A few ideas were launched in September 2017 by Jean Claude Juncker and the new French president, Emmanuel Macron (we reported on them here). They are further elaborated in the communication presented last week by the Commission. Five institutional issues are identified: the procedure for the election of the president of the Commission; the composition of the European Parliament; the composition of the European Commission; a possible double-hatting of the Commission and Council president; the organization of “citizen’s dialogues.”

We will examine each of them in their historical context and highlight the pros and cons of the options presented.

The procedure for the Election of the President of the Commission

For the replacement of Jean Claude Juncker next year, the Commission is proposing to use the same procedure that resulted in his election in 2014. It is called the “Spitzenkandidaten,” or “lead candidate” procedure, as the chosen president must be the candidate chosen by the political group in the EP receiving the highest number of seats in the election.

The process leading to the “Spitzenkandidaten” finds its origin in the debates of the Convention on the Future of Europe of the beginning of the century, which discussed at length the “democratization” of the election of the president of the Commission. What remains of this debate in the Lisbon Treaty is only that, before choosing a candidate, the European Council must “take into account” the results of the European elections.

In principle, this was not supposed to deprive the European Council of its traditional prerogative to select the candidate of its choice. But, according to the treaty, as the EP must approve the choice of the European Council, it gives it some leverage in the process – and, last time around, this leverage was used to its maximum effect. One year before the election of 2014, each of the political groups of the EP selected a candidate supposed to compete for the position. The Christian Democrats (EPP) chose Jean Claude Juncker (over Michel Barnier); the socialists selected Martin Schulz, the then-president of the EP; the Liberals Guy Verhofstadt; the extreme left Tsipras; and so on.

From the point of view of the heads of government, this formula meant a serious blow to the balance of power among the institutions: the Treaty gives the Parliament the final say, but it does not give it the right of initiative. Angela Merkel, as well as many other national leaders, were adamantly opposed to the Spitzenkandidaten process. Merkel even tried to convince Christine Lagarde, the director of the IMF, to put herself forward for the post, so as to derail the process. The president of the European Council at the time, Herman Van Rompuy, also publicly expressed his opposition.

But when it became clear, after the election, that the candidate of the Parliament would be Jean Claude Juncker (and not Schulz) the German chancellor changed her tone and encouraged the others to accept him. The choice of Juncker, who had sat in the European Council for 18 years, but never in the EP, helped to sidestep the question of principle – or at least attenuated the urgency of addressing it.

If the Socialists had won more votes than the Christian Democrats, it is far from certain that their candidate would have been chosen as easily as Juncker was. Therefore, it was clearly stated at the time that the debate on the selection process of the President of the Commission was not closed with the election of 2014. When the European Council confirmed the choice of Juncker, it decided that once the next Commission would be in place, it would “consider the process for the appointment of the President of the European Commission for the future, respecting the European Treaties”.

This discussion will thus finally start now. As mentioned above, the Commission suggests continuing with the “Spitzenkandidaten” formula but with a few improvements to the procedure. It calls on the political parties to make an earlier choice of the lead candidates, before the end of 2018, and for an earlier start to the campaign.

It also suggests that the link between national parties and European parties be made more visible – which will, in fact, be more difficult this time, because of the arrival on the European scene of the candidates of Macron’s “En Marche” movement. They will probably be numerous in the new EP, but difficult to insert into a political group, given they are supposed to be neither from the left nor from the right. This – together with other reasons – explains why Macron is not enthusiastic at all about the whole “Spitzenkandidaten” concept.

The most substantive criticism of this procedure is that it centres on people who are in the Parliament (such as Martin Schulz) or available at the national level because they are no longer in power (as was the case with Juncker). The risk is indeed that this process will exclude leading figures who would not want to commit a year in advance to an electoral system with an unpredictable and uncertain outcome and over which they would have no personal influence.

Another objection is that the whole procedure depends on the results of elections in 28 countries, where most citizens have never heard of the candidates chosen by the groups. Jean-Claude Juncker was not really chosen by the EPP voters outside his country, the vast majority of whom did not even know his name. His “democratic legitimacy” is thus less than overwhelming.

A more institutional objection is related to the nature of the European Commission itself: being a supranational institution, supposed to defend the “superior interest” of the EU, protect smaller Member States and carry out the decisions of the Council, can it be “political” – in the sense of partisan politics – or should it remain politically neutral? This last argument is important in particular because of the new responsibilities given to the Commission during the Eurozone crisis, namely a very intrusive monitoring of national budgets and of adjustment programmes in countries receiving a bailout.

These questions are difficult and were not the subject of an open debate within the institutions before the election of Jean-Claude Juncker. His election was in fact managed primarily as an institutional battle, conducted in order to make the power relationship between the institutions evolve in favour of the EP.

The composition of the European Parliament

Since the election of the EP will take place after Brexit, the European Council needs to decide on its new composition, after the removal of the 73 UK seats. This decision has to be made on the basis of a proposal by the EP itself.

In a preliminary Resolution on February 7, the Parliament accepted to shrink from 751 to 705 MEPs when the UK leaves. 46 seats would be put in a reserve and reallocated to new countries joining the EU in the future; the remaining 27 would be distributed among 14 EU countries that are currently said to be slightly under-represented.

In that vote, the Parliament rejected a suggestion made by the “federalists,” but also supported by Europhiles like President Macron, to reserve a number of seats for a “transnational constituency,” composed of parliamentarians elected across the EU and not just from national lists. It did however leave the door open to future debates about this idea.

In its communication of February 14, the Commission indicates that it is sympathetic to the idea of transnational lists, but does not really support it: “a transnational constituency could strengthen the European dimension of the election by giving candidates the possibility to reach more citizens across Europe. On the other hand, parliamentarians normally represent and communicate closely with the voters who elected them on a local or national level, both for reasons of accountability and to be able to raise concerns of their constituents”.

The Commission also notes that establishing these lists requires unanimous agreement of the Council, and changes to electoral law in all 27 Member States. This would obviously be difficult to achieve in time for the 2019 elections.

The debate therefore remains open, but it will probably not be closed before the next election. Like other issues in discussion now, the aim will rather be the election which follows, in 2024.

The Composition of the EU Commission

Before the next European Commission is appointed, the European Council will have to decide formally whether to maintain the principle, currently applied, of one member from each Member State, or to make the Commission smaller, as is mandated by the Treaty.

According to the Rome Treaty, the smaller Member States had one commissioner and the larger two – bringing the number from 9 at the beginning to 20 after the enlargement to Sweden, Finland and Austria in 1994. The excessive number of commissioners became an issue in the preparation for the big enlargement at the beginning of the new century: it was obviously not possible to keep the existing rule for a Commission with 25 and more members. It would have brought the number of Commissioners to more than 30.

The Amsterdam Treaty failed to find a solution to this problem and the Prodi Commission, appointed in 1999, was still composed of 20 members – two for Germany, France, the UK, Italy and Spain, one each for the other ten. The Treaty of Nice provided for a reduction once the Union reached 27 members. In the meantime, the Commission would consist of one national from each Member State. This last rule was applied to the first Barroso Commission of 2004, but the formula for the reduction was changed by the Lisbon Treaty before the Nice rule could be applied.

According to Article 17 (5) of the Lisbon Treaty (TEU): “As from 1 November 2014, the Commission shall consist of a number of members including its President and the High Representative, corresponding to two thirds of the number of member states unless the European Council, acting unanimously, decides to alter this number. The members of the Commission shall be chosen among the nationals of the member states on the basis of a system of strictly equal rotation between the member states, reflecting the demographic and geographical range of all the member states. This system shall be established unanimously by the European Council in accordance with article 244 TFUE” (which outlines the rotation system)

But this provision of the treaty was never implemented. In December 2008, the European Council, struggling to help Ireland organize a second referendum on the ratification of the Lisbon treaty, after a first one had rejected it, accepted the Irish request to renounce reducing the number of commissioners. This reassurance was repeated on June 22, 2013, without giving rise to any debate.

The reason for the Irish request was that smaller Member States have the impression that having a Commissioner is the only way for them to have a proper access to the decision‐making process in the institution. As many small countries who joined the EU since 2004 share this feeling, there is little chance that a consensus will emerge before next year on implementing the Treaty requirement.

Even if Jean Claude Juncker had to struggle in 2014 to find a decent full time job for each of his 27 commissioners, the current Commission, curiously, seems to support the approach of the small countries. Indeed, the February 14 communication states that: “A smaller executive would in theory be more efficient in its operation, easier to manage and would allow a more balanced distribution of portfolios. But a smaller Commission would also mean that some Member States would not be represented at the political level of the institution, and would lose the advantage of maintaining a direct political communication channel with their citizens and national authorities”.

A Double-Hatted President for the Commission/European Council

In his “State of the Union” speech in September 2017, President Juncker had suggested the idea of merging the position of the president of the Commission and that of president of the European Council.

This suggestion is taken over and amplified in the Commission’s communication of February 13, with an argument going beyond the simple efficiency: “having one person preside the two institutions would embody the dual nature of the Union’s legitimacy and accountability and strengthen both”.

The Commission communication also answers the “institutional” objections presented against this idea, insisting that what is at stake is not a merger of the institutions but the use of the “double hatting” formula which is in use for the High Representative for Foreign and Security Policy.

Indeed, according to this formula (article 18 TEU, para. 4), the High Representative/Vice-President of the Commission is bound by the Commission’s procedures, “but only for these responsibilities, and only to the extent that this is consistent with the other functions he/she assumes”. If this formula is used, the President of the European Council, acting as such and representing the Union for CFSP issues at his level, would not use the same powers with his Commission hat – which puts him at the top of the community system, but only when the “College” agrees.

The Commission also rejects the objection that the president of the European Council has a term of two-and-a-half years, renewable only once, while the Commission’s president is elected for five years and may be renewed one or more times: “pragmatic” solutions to that problem could be found, according to the Communication.

The institutional leadership in the Union would obviously be enhanced if there were a real “President of Europe.” It would ensure better coherence between the “pillars” and create a true leadership position covering the whole activity of the Union. Public opinion seems to aspire to such a development – but national governments remain sceptical.

One argument the leaders will not express publicly but which might be important is that choosing two different people broadens the choices and makes it easier to satisfy everyone.

Another argument against is the fact that the Commission is a “supranational” institution. Its president has as sole responsibility to manage the Commission and not Europe in general, beyond the actual community domain. This objection is met, in principle by the use of the double hatting formula, but it is clear that what has been accepted at the level of the Foreign Ministers is more difficult to accept at the top level.

In reality, the question is one of political expediency – or rather, one might say, of political maturity: has the European construction reached the stage where we could afford to challenge the institutional triangle of the Community method at the highest level? Are the Member States prepared to accept a president of the European Council doing more than presiding over the European Council? Does such a function not require that the holder be elected directly or on the basis of a procedure similar to that of the election of the U.S. president – which of course would require a serious change in the Treaty?

The third argument is the most valuable. If we want to create a function of “president of Europe,” the European citizens cannot be caught off guard. But, on the other hand, the history of the European construction is full of substantive institutional moves imposed for reasons of efficiency, and later accepted by all because it can be demonstrated that things work better that way.

The “Citizen’s Dialogues”

Whenever European elections draw closer, the problem of distance from the citizen always comes back to haunt EU leaders and the institutions.

Soon after his election in 2017, president Macron of France had launched the idea of “citizen’s consultations” on the future of Europe. This idea immediately attracted the support of several heads of government.

The Commission of course encourages all Member States to proceed with this kind of dialogue “according to their own traditions and internal democratic arrangements”. The communication reminds readers that the Commission regularly organises Citizens’ Dialogues with Members of the Commission, the EP, national governments, local and regional authorities and civil society representatives.

What is suggested in order to give more focus to all these consultations is to link them to the online consultation on the future of Europe, a process launched last year by the Commission and which will be completed on May 9, 2019, in an EU summit in Sibiu, Romania – which will also be the first such summit after Brexit.

Better Late Than Never

As we mention above, it is a little late, just one year before the beginning of the campaign for the election of the new EP, to start debating difficult institutional proposals, some of which have complex implications.

But this is the way the EU works: nothing is ever concluded forever, and progress is achieved step by step, when the circumstances allow further steps towards further integration.

This seems to be the case for the moment. Some issues, such as how the President of the Commission is chosen, need to be addressed anyway, if we are to avoid an artificial debate next year on the “democratic” nature of the EU system.

Other issues, like the composition of the Commission or the double hatting of the presidents of the Commission and the European Council deserve a substantive discussion which, if decisions cannot be made next year, should continue, with a firm eye on the next electoral year of 2024.